01-003211PL Department Of Health, Board Of Medicine vs. Remo G. Gaudiel, M.D. Status: Closed Recommended Order on Thursday, April 4, 2002.

Summary: Failure to document patient`s refusal for hospital admission warrants discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3211PL

)

REMO G. GAUDIEL, M.D., )

)

Respondent. )

)

RECOMMENDED ORD ER

On November 5 - 6, 2001, a formal administrative hearing in

this case was held in Tampa, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration

Office of the General Counsel

2729 Mahan Drive, Building 2

Mail Station 39 - A

Tallahassee, Florida 32308

For Respondent: Ross L. Fo gleman, III, Esquire

3400 South Tamiami Trail, Suite 302

Sarasota, Florida 34239

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint filed by the Petitioner against the

Respondent are correct and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 10, 2001, the Agency

for Health Care Administration, Board of Medicine (Petitioner)

alleged that Remo G. Gaudiel, M.D. (R espondent) violated various

statutes in his treatment of a patient in March 1997. The

Respondent disputed the allegations and requested a formal

hearing. The Petitioner forwarded the request to the Division

of Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

five witnesses and had Exhibits numbered 1 - 7 admitted into

evidence. The Respondent testified on his own behalf, presented

the testimony of one witness, and had Exhibit s lettered A - F

admitted into evidence.

A Transcript of the hearing was filed on February 11, 2002.

Both parties filed Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

In order to protect the right to privac y of the patient,

this Recommended Order does not identify the patient by name.

FINDINGS OF FACT

1. The Petitioner is the agency responsible for licensure

and regulation of physicians practicing in the State of Florida.

2. The Respondent is a Florida licensed physician, holding

license number ME 0034599. The Respondent is a board - certified

general and thoracic surgeon.

3. In March of 1997, the Respondent was in private

practice and a member of the medical staff at Englewood

Community Hospital, in Eng lewood, Florida.

4. On March 25, 1997, emergency medical service personnel

transported an 81 - year - old male (patient) to the Englewood

Community Hospital emergency room at about 5:00 p.m. The

patient had fallen in his home, hitting his head on a door fr ame

and sustaining an injury to this right chest, apparently near

his ribs.

5. Upon arrival at the hospital, the patient was examined

by Dr. William B. Caldwell, an ER physician employed by a

company that provided emergency services by contract with the

h ospital. Dr. Caldwell did not have admitting privileges at the

hospital. Only a physician who was a member of the hospital's

medical staff could admit a patient.

6. Upon initial examination, Dr. Caldwell observed a

laceration on the patient's forehead a nd pain on the patient's

right side near the ribs. The patient was alert and described

the event, stating that he fell, hit his head on the door frame

and hurt his ribs. There was no indication of neurological

change or loss of consciousness. There wa s no indication of

cervical injury. Bleeding was controlled.

7. According to the patient's history, the patient had

chronic obstructive pulmonary disease, coronary artery disease,

a prior heart attack, and periodic atrial fibrillation. The

patient als o had an abdominal aortic aneurysm of approximately

four centimeters, apparently unaffected by the event based on

the initial examination in the emergency room.

8. The patient was taking coumadin, commonly known as a

blood "thinner" which delays clottin g time.

9. The patient was sent for X - rays, which confirmed the

chronic obstructive pulmonary disease and an old rib fracture.

10. Upon return from X - ray, Dr. Caldwell noticed that a

developing hematoma on the right side of the patient's chest,

indic ating that there was active bleeding occurring in the chest

cavity, apparently related to a new rib fracture. At that

point, the patient was having breathing difficulty.

Dr. Caldwell ordered breathing treatments for the patient, which

resulted in some i mprovement.

11. Initial lab work indicated that the patient's

"prothrombic time" was at a "panic value" level, according to

the Petitioner's expert witness, which warranted admission to

the hospital. According to the time of the lab report, the

infor mation was available at 6:45 p.m. There is no credible

evidence that Dr. Caldwell reviewed the lab report.

12. Dr. Caldwell discussed the case with a physician who

was covering the practice of the patient's regular physician.

Dr. Caldwell believed the patient should have been admitted to

the hospital and discussed it with the general physician, who

allegedly agreed.

13. At about 7:10 p.m., the Respondent was called in to

examine the patient. The Respondent's notes indicate he was

called in for a "t horacic and surgical consultation."

14. Dr. Caldwell discussed the case with the Respondent,

and reviewed the X - ray information.

15. Dr. Caldwell testified that he "believed" the

Respondent had assumed responsibility for the patient. The

Respondent asserts that he was called in to consult on the case,

and did not accept responsibility for patient care. The

evidence fails to establish that the Respondent agreed to assume

responsibility for the patient.

16. There is no credible evidence that Dr. Ca ldwell asked

the Respondent to admit the patient to the hospital, or that

Dr. Caldwell advised the Respondent that he and the general

physician believed admission was appropriate.

17. Shortly after reviewing the X - rays with the

Respondent, Dr. Caldwell left the hospital for the night, having

finished his work shift. He failed to dictate any records of

his examination or treatment of the patient prior to leaving the

hospital.

18. The Respondent sutured and bandaged the laceration on

the patient's for ehead. While suturing the wound, the

Respondent discussed with the patient the advisability of being

admitted to the hospital for observation based on his age and

the nature of the fall. The patient wanted to return home and

declined to be admitted to th e hospital.

19. The Respondent thereafter advised the patient to

discontinue the use of coumadin and prescribed a medication to

remedy the prothrombin deficiency as well as an antibiotic. The

Respondent advised the patient to follow up with his regular

physician. Shortly thereafter, the Respondent left the

emergency room.

20. The patient was discharged from the emergency room at

8:54 p.m. According to the nurse's notes, the Respondent

approved the discharge. There is no documentation that the

Respo ndent directed a nurse to discharge the patient. There is

no direct evidence that the Respondent told the nurse to

discharge the patient. Although the nurse expressed some

concern about the patient's condition at the time of the

discharge, there is no ev idence that she relayed her concern to

the Respondent.

21. The patient returned to his residence and, within two

hours after his discharge, died. At approximately 10:56 p.m.,

emergency medical service personnel were called to the patient's

residence an d confirmed that the patient was dead.

22. An autopsy was performed on the body of the deceased

patient. The autopsy report indicates that the cause of death

was "blunt force cranio - cerebral, neck and thoraco - abdominal

trauma." The autopsy report indic ates the existence of an

11 x 9 centimeter contusion of the right flank with associated

rib fractures, a fracture of the C4 level vertebral body with

"posterior epidural blood extravasation of the C4 level spinal

cord," and "traumatic leakage of the abdom inal aortic aneurysm

into the retroperitoneal and peripelvic soft tissue."

Contributing factors were the patient's "severe chronic

obstructive pulmonary disease and atherosclerotic cardiovascular

disease."

CONCLUSIONS OF LAW

23. The Division of Admini strative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

24. The Petitioner has the burden of proving by clear and

convincing evidence the allegations against the Res pondent.

Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

25. The Petitioner has charged the Respondent with

violations of Section 458.331(1)(m) and (t), Florida Statutes.

In relevant part, Section 458.331, Florida Statutes, provides as

follows:

458 .331 Grounds for disciplinary action;

action by the board and department. --

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072 (2):

* * *

(m) Failing to keep legible, as defined by

depart ment rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of co nsultations and

hospitalizations.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

co nditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this paragraph.

As used in this paragraph, "repeated

malpractice" includes, but is not limited

to, three or more claims for medical

malpractice w ithin the previous 5 - year

period resulting in indemnities being paid

in excess of $25,000 each to the claimant in

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, "gross

malpractice" or "t he failure to practice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances," shall not be construed

so as to require more than o ne instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

26. In this case, the evidence establishes that the

Responde nt's failure to document the patient's refusal to be

admitted to the hospital constitutes a violation of Section

458.331(1)(m), Florida Statutes.

27. As to the remaining allegations related to the

standard of care provided to the patient, the evidence f ails to

establish that the Respondent violated Section 458.331(1)(t),

Florida Statutes, because the evidence is insufficient to

establish that the Respondent ever assumed responsibility for

the patient's care.

28. The Petitioner's expert witness opined that based on

his review of the medical records the patient should have been

admitted to the hospital for observation, and that the failure

to do so constitutes care below the acceptable standard. The

witness stated that a CT scan of the patient's head sh ould have

been completed based on the patient's age and the head trauma,

and that the patient should have been admitted until the blood

coagulation levels were adjusted to correct the patient's

"bleeding time."

29. As to whether the patient should have been admitted to

the hospital, the testimony of the Petitioner's expert witness

has been credited; however, the evidence fails to establish that

the Respondent was responsible for the failure to admit.

Although Dr. Caldwell discussed the case with the Res pondent,

there is no credible evidence that Dr. Caldwell asked the

Respondent to assume patient responsibility. There is no

credible evidence that Dr. Caldwell and the Respondent discussed

admitting the patient to the hospital.

30. Rule 64B8 - 9.003, Flo rida Administrative Code,

establishes standards for adequacy of medical records. Such

records are to be maintained with "sufficient detail to clearly

demonstrate why the course of treatment was undertaken or why an

apparently indicated course of treatment was not undertaken."

Rule 64B8 - 9.003(2), Florida Administrative Code. The

Petitioner's expert witness opined that, if the patient declined

admission, such information should have been documented in the

medical records, and that the failure to document t he

conversation constitutes a failure to maintain appropriate

records justifying the course of treatment. The evidence

establishes that the Respondent's failure to document the

conversation with the patient constitutes a violation of Section

458.331(1)( m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Agency for Health Care

Administration, Board of Medicine enter a Final Order

reprimanding Remo G. Gaudiel for failure to mainta in appropriate

medical records and imposing a fine of $1000. It is further

recommended that the Respondent be required to complete within

six months of the Final Order, a continuing education course

related to proper completion and maintenance of adequate medical

records that is acceptable to the Petitioner, in addition to any

other applicable continuing education requirements.

DONE AND ENTERED this 4th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April, 2002.

COPIES FURNISHED :

Britt Thomas, Esquire

Agency for Health Care Administration

Office of the General Counsel

2729 Mahan Drive, Building 2

Mail Station 39 - A

Tallahassee, Florida 3230 8

Ross L. Fogleman, III, Esquire

3400 South Tamiami Trail, Suite 302

Sarasota, Florida 34239

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All pa rties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.